Big Brother in Albany

The public policy environment of New York State is almost invariably depressing. When you combine a corrupt dysfunctional State Legislature with an arrogant unaccountable Governor who rules as if endowed with the royal prerogative, there's little reason for pride in the way the Empire State is led. In fact, it's sometimes difficult to imagine how things could get any worse.

And then, earlier this week, the Governor veered frighteningly into the territory of the suppression of free thought and speech, and intolerance for religious freedom.

His press release trumpeted that the Governor had signed an Executive Order "banning all state agencies and authorities from doing business with companies that promote or tolerate discrimination" against "LGBTQ" people. At first glance, who could object to that? Discrimination is a bad thing, isn't it? But read that statement again carefully. It doesn't say "companies that discriminate". It is aimed at companies that "promote or tolerate" discrimination. What in the world does that mean?

The answer can be found by reading further in the press release and the Executive Order. There it is made clear that the target of this new action is the very existence of religious agencies, and the intent is to suppress any deviation from the new orthodoxy of gender and sexual ideology. There we will find these nuggets (the original language is in italics and my comments are in regular text):

"Additionally, in October 2017, the federal government rescinded a contraceptive coverage mandate under the Affordable Care Act."

This is a reference to proposed new regulations that would finally end the interminable controversy over the HHS Mandate, which forced religious organizations to provide health insurance coverage for contraception and abortifacients. This was the mandate that caused the Little Sisters of the Poor and other Catholic institutions to fight for their rights all the way up to the Supreme Court.

This gives the game away right at the start. Those proposed regulations had nothing to do with discrimination laws or "LGBT" rights. They dealt solely with religious liberty and the HHS Mandate. By citing this completely irrelevant federal proposal, the press release inadvertently made clear that the Governor's new order is rooted in animosity towards religious freedom.

"This action has permitted employers and organizations to claim broad exemptions from nondiscrimination laws, which has increased the vulnerability of LGBTQ rights."

This statement is absolutely false, misleading and incomprehensible. The Administration's action on the HHS Mandate had absolutely nothing whatsoever to do with anti-discrimination laws, and it had absolutely nothing whatsoever to do with "LGBTQ" rights. It granted no exemptions of any kind whatsoever from non-discrimination laws, which the Executive Branch is not able to do anyway without an act of Congress. The idea that "LGBTQ rights" might be "vulnerable" (whatever that means) because of a decision relating to health insurance coverage of contraceptives is something that only an ideologue could believe.

This also gives the game away. This claim about exemptions from non-discrimination laws is the bogeyman raised by gay rights advocates to create a (non-existent but sympathetic) conflict between their interests and religious liberty. By parroting the advocates' talking points, the Governor shows that the real intent of his Executive Order is to stigmatize religious freedom and threaten to penalize people for unacceptable thinking.

"With this executive order, New York reaffirms our commitment to protecting the rights of everyone."

This is classic Orwellian doublethink -- simultaneously believing in two utterly contradictory things. You cannot at the same time quash religious liberty and freedom of thought and still claim to be protecting the rights of everyone. This order is premised on the assumption that freedom is a zero-sum game with winners and losers -- and the Governor has chosen which side he wants to win.

"Finally, the Governor announced that any school that refuses to protect transgender students will not receive state funding."

Here is the unequivocal and direct attack on religious liberty. Note that the Governor's order is aimed at "any school", not just public schools. Catholic, Christian and Orthodox Jewish schools receive state funding for things like textbooks and computers as a matter of basic fairness to the parents of their students. They already protect all students from any kind of harassment or bullying or violence. But they do not and cannot recognize the idea of transgenderism, which is based on a false anthropology contrary to their religious beliefs. These faith communities continue to commit what contemporary sexual ideology considers to be an unforgivable heresy -- namely, that God created every human person as male and female and that one's "gender identity" must accept and conform to to the biological reality of male and female nature.

The amorphous language being used here -- the vague undefined terms "protect", "tolerate" and "promote" -- shows that broad discretion is going to be given to unaccountable bureaucrats to police speech and thought as well as behavior. Who will decide what is sufficient to constitute "protection" and what standard will they use? Will it be enough to protect all students equally? Or will the state require Catholic, Christian and Jewish schools to violate their religious beliefs and treat some students in special ways that acknowledge the false notion of fluid gender identity? Does anyone trust this state government led by this Governor to act in a way that respects religious freedom as well as the rights to free speech, thought and association? Or are we witnessing the foundation of a Thought Police?

"Affected State Entities are hereby directed to amend their procurement procedures to prevent Affected State Entities from entering into contracts with entities that have institutional policies or practices that fail to address the harassment and discrimination of individuals on the basis of their gender identity, transgender status, gender dysphoria or any of the other protected classes enumerated above."

This is the language of the Executive Order itself, and it carries much more weight than a press release. This is the directive that will be used by state agencies to come up with binding rules. If this language just spoke of banning companies that have been found guilty of actual acts of discrimination, then it would be one thing. Or if it dealt with government agencies subject to the Governor's direct authority, that would make some sense.

But this Order is aimed at banning private companies "that have institutional policies or practices that fail to address" harassment and discrimination. This doesn't seem to require proof of actual wrong-doing -- that acts of discrimination have occurred or that the company failed to correct them. So how will we know if a policy "fails to address" discrimination? Who will decide that, and what standard will they use? Since our schools and institutions do not recognize the validity of transgenderism, are we
per se guilty of this thoughtcrime because of our religious beliefs? Again, can we trust this state government led by this Governor to act in a way that respects religious freedom as well as the rights to free speech, thought and association?

To really capture the import of the Governor's new policy, just consider his own words: “I can tell you that any school that refuses to protect transgender students will not receive a penny of state money and
then they are out of business.” No subtlety to that threat. The only schools he could be talking about are religious ones, and everyone knows that means Catholic, Christian and Orthodox Jewish schools. The message is clear -- conform or be destroyed.

Last year, the Supreme Court ruled in a case named
Trinity Lutheran Church v. Missouri. It involved a religious school that was denied a government contract that was generally available to anyone else. The Court said,

The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character. Under our precedents, that goes too far. The Department’s policy violates the Free Exercise Clause.

The Supreme Court saw clearly that our Constitution recognizes the fundamental human right to think and believe freely, and that government cannot penalize persons or organizations solely because of their religious beliefs. The Court rejected the fundamentally totalitarian idea that all private entities must be forced into harmony with the government's ideology.

The Supreme Court sees what Big Brother in Albany does not. The future of freedom in our state is not looking good.